Opinion: Antitrust Law and the Remaking of the Profession

In November 2025, the Department of Education proposed stripping the professional designation from architecture degrees. This reclassification would limit the amount of federally backed funding available to students, raising an already high barrier to entry. It comes at a moment when architects face declining fees, increased liability concerns, and a general erosion of project agency. For a profession that still requires licensure, still requires an accredited degree, and still bears legal responsibility for public safety, something is clearly amiss.

In truth, the profession has not been in a good place for some time. Practicing architecture is not easy and barely profitable. Our sleepless graduates earn less than a third of what doctors and lawyers make, and that gap narrows only slightly in the first years of their careers. The financial squeeze is felt by both employees and firms, with nearly half of firm leaders reporting in the March 2024 AIA Architecture Billings Index that fee negotiations have become more difficult over the past five years. Every architect has stories of unpaid work, chasing invoices, and the persistent sense that our fees are the most expendable part of a project. Even the way we calculate fees, whether as a percentage, a flat fee, or—worst case scenario—by the square foot, is convoluted and frequently leads to disputes and renegotiations.

At the same time that fees have declined, liability has increased. From industry threats of social inflation (rising insurance claim costs that exceed general inflation) and nuclear verdicts (jury awards typically exceeding $10 million) to annual increases in required insurance coverage and untenable construction defect liability, architects have never been strapped with such a broad and complex range of risk. This is especially true in Texas, which the AIA Trust has identified as one of the highest-stakes states in which to practice.

This pressure has led architects to narrow their scope—a rational response to lower fees and higher risk—often reducing practice to little more than code compliance and risk management. The shift is perhaps most acutely felt when graduates transition from school to the workforce. Architecture school presents the profession through its most expansive ambitions, but the reality today is far more constrained. The profession has been compressed between two poles: bespoke service for the wealthy on one end and anonymous production on the other. The civic middle—where architecture’s transformative potential truly resides—has largely disappeared.

Architectural pedagogy has been under scrutiny for some time, and this article is not meant to add to that critique. That is a separate conversation. Here, the focus is on what happens after graduation. The point is that many of us feel we are working in the shadow of a diminished profession—that something of our civic relevance has been lost.

To understand how we got here, we must return to 1890 and the passage of the Sherman Antitrust Act. Two excellent resources have informed this article. The first, Peggy Deamer’s “The Sherman Antitrust Act and the Profession of Architecture,” provides an exhaustive analysis of how legislation and case law have reshaped the profession. The second, Nicolas Kemper’s “Antitrust and Architecture: Coordination not Domination,” traces this history through contemporary efforts to unionize. Both are well worth reading.

In brief, the Sherman Antitrust Act was enacted by Congress in the late 19th century to rein in the monopolists whose consolidated market power distorted both economic and political systems. Its intent was to encourage fair competition by limiting restraints on trade and ensuring economic rights. How architects—hardly robber barons—and the “learned professions” more broadly came to be included under its scope requires understanding both the evolution of antitrust law and the country’s shifting relationship with capital. Initially, the law functioned as a tool to break up monopolies that threatened both consumer costs and democratic governance. The specter of European fascism in the 1930s, clearly backed by industrial capital, made concerns about concentrated political power even more urgent. In its early decades, antitrust enforcement was relatively successful in maintaining a more level economic playing field.

Certain exemptions from antitrust laws existed, with labor unions foremost among them, followed by a carve-out for the learned professions, which were to be judged solely on merit rather than price competition. It was understood that some fields functioned best outside conventional market competition, as maintaining high professional standards served the public good. Within this framework, architects adhered to a strict code of ethics that, among other provisions, prohibited including a price of service in proposals. Instead, fees were based on standardized schedules tied to project type and complexity. This system allowed architects to be evaluated on merit while ensuring compensation sufficient to support high-quality design.

However, in the 1970s the directive of the law changed. U.S. Solicitor General Robert Bork argued that antitrust law should prioritize economic efficiency above all else and that restricting the growth of firms could harm consumer welfare. In effect, antitrust enforcement shifted away from limiting the size and power of corporations, so long as goods and services could be delivered at an ever-lower cost. The consequences of this shift are evident all around us today in the dominance of mega-corporations and the near disappearance of smaller, independent mom-and-pop enterprises.

This new interpretation proved hostile to the learned professions exemption. In 1975, in Goldfarb v. Virginia State Bar, the Supreme Court ruled that fee schedules, in this case for lawyers, constituted price-fixing and violated antitrust principles. The Court also determined that the “learned professions” were not exempt from the Sherman Act, which applies broadly to all “trade or commerce.”

Professional codes of ethics soon came under scrutiny as well. Deamer writes, “Professional codes of ethics were increasingly seen as the essence of collusional thinking and became the target of the DOJ.” In 1978, in National Society of Professional Engineers v. United States, the Supreme Court held that prohibiting competitive bidding—an ethical standard for both engineers and architects—suppressed price competition and therefore violated antitrust law. The NSPE argued that competitive bidding would incentivize cutting corners and compromise public safety. The Court rejected this argument, and the result was the enforcement of open competition. This case is also significant because the professional organization did not at first accept the DOJ’s consent decree, which would have negotiated new operational procedures without having to admit guilt, but instead opted to contest the allegations in court. The enormous legal cost to the NSPE established an effective deterrent for other professional organizations, who have all since accepted consent decrees when faced with antitrust compliance.

Two additional actions targeted the AIA directly. In 1972, the Department of Justice challenged the AIA’s long-standing fee schedule, in place since the 1860s, along with other measures that limited competition among members. To avoid a costly trial, the AIA accepted a consent decree eliminating both the fee schedule and restrictions on competitive bidding, despite opposition from members. A second case in 1990 further restricted coordination: After the president of AIA Chicago circulated documents on fee-setting practices, the AIA agreed to another consent decree prohibiting architects from discussing fees with one another altogether.

Today, antitrust law can be understood as encouraging vertical domination while prohibiting horizontal coordination. The irony of the post-Bork interpretation of the Sherman Act is that it promotes the very consolidation the original law sought to prevent. This consolidation reduces market variation and flattens services, pushing the profession toward small boutique firms catering to the wealthy on one end and large corporate conglomerates optimized for efficiency on the other.

The result of forced competition is a race to the bottom. Lower fees mean less time to do the work, which in turn produces shallower, less rigorous architecture. The public realm suffers, and so does the profession’s role within it. It becomes increasingly difficult to demonstrate value when fees are treated as negotiable and the product itself as interchangeable.

So what is to be done?

Other professions have found ways to operate within these constraints. The American Council of Engineering Companies, for example, has shown how implicit coordination can navigate antitrust limits through an anonymized peer benchmarking program, enabling firms to calibrate pricing against aggregated market data without direct coordination among competitors. This offers a compelling precedent for our own profession.

The legal framework supporting such mechanisms, however, has grown less stable. In 2016, the DOJ issued formal guidance establishing a safe harbor for neutral third-party compensation surveys; in 2023, it rescinded that guidance without replacement, leaving firms across industries to navigate antitrust exposure on a case-by-case basis. In 2024, the DOJ took action against the MLS, dismantling the commission-sharing structure that had long set implicit fee norms for realtors. Together, these developments reflect a broader pattern of systematically dismantling tools that might enable cooperation.

A more durable solution lies in legislation. The Parker v. Brown doctrine establishes that state-sanctioned activity is exempt from federal antitrust law, meaning state legislatures can create protected frameworks for professional fee guidance. This presents a clear opportunity for organizations like TxA to lead, and international precedents exist: Australia recently carved out exactly such an exception for small firms, while Germany has maintained its government-approved fee schedule, the HOAI, as a professional baseline for some time.

Additional avenues exist for collective action within current law, and some architects are already pursuing them. Unionization shifts workers into a different antitrust exemption. In April of this year, employees at New York’s Sage and Coombe Architects became only the second firm in the country to join Architectural Workers United. Unionization exerts new pressure on firm leadership that may create tensions with existing clients and will need sustained support before becoming widely effective. Firms can also merge, forming entities large enough to set internal fee structures that would be illegal to coordinate externally. More broadly, legal scholars Sanjukta Paul and Tim Wu have argued that antitrust enforcement has drifted from its original purpose of protecting competition among equals toward protecting big business and disadvantaging the little guys.

We must embolden our professional organizations to face the realities of both past and present challenges. The foundations of the profession are not sound, but there is a path forward through collective action. It begins with an honest assessment of how architecture operates within broader systems of federal governance. We still have the power to shape the public realm, but doing so will require real policy work and sustained advocacy.